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2019 DIGILAW 1251 (KAR)

L. Pandu v. M. Mangala

2019-06-13

B.V.NAGARATHNA, K.NATARAJAN

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JUDGMENT : B.V. Nagarathna, J. Though this appeal is listed for Admission, with the consent of learned counsel on both sides, it is heard finally. 2. Appellant was the plaintiff and respondents are defendant Nos.1 and 2 in Original Suit No.4718 of 2017. Respondent Nos.1 and 2 herein filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, 'C.P.C') before the LXVI Additional City Civil and Sessions Judge, Bengaluru City. Said application has been allowed by order dated 23/06/2018. Consequently, plaint has been rejected. Being aggrieved by the rejection of the plaint, plaintiff has preferred this appeal. 3. The appellant-plaintiff herein sought the following reliefs, in respect of following Schedule property, in the suit: "i) Declare that the Plaintiff is the absolute owner of the Schedule property; (ii) Direct the Defendant Nos.1 to 8 to quit, vacate and deliver vacant possession of the Scheduled Property and simultaneously Direct the Defendant No.10 to demolish the temporary structure constructed on the Schedule Property in accordance with the direction of the Hon'ble High Court of Karnataka in No.6945/2010; (iii) Direct the Defendant Nos.1 and 2, to pay the damages at the rate of Rs.25,000/- (Rupees Twenty-five thousand only) per month from the date of suit till delivery of vacant possession of the Schedule Properly to the Plaintiff; (iv) Award the Plaintiff the cost of the suit; and (v) Grant such other relief/reliefs." SCHEDULE PROPERTY "All that piece and parcel of immoveable property situated at Site Nos.3329, 3330, 3238, 3239, 3240 carved in Survey Nos.16, 17, 18, 19 of Gerahalli Village and 101, 103/1, 103/2, 104/1, 104/2, 105 and 106 of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk, in 4th Phase of Girinagar, Bengaluru 560 085, measuring East to West, 80 feet and North to South 70 feet totally measuring 5600 sq.ft. and bounded on the: East by : Road, South by : Private Property (Part of Site Nos.3328 & 3241), North by : Private Property (Site No.3237), West by : Road" 4. and bounded on the: East by : Road, South by : Private Property (Part of Site Nos.3328 & 3241), North by : Private Property (Site No.3237), West by : Road" 4. In substance, the plaintiff sought for a declaration of title in respect of suit schedule property and for possession of the property as against defendant Nos.1 to 8 in the suit and direction to defendant No.10 to demolish the temporary structure constructed in the suit schedule property and for damages of Rs.25,000/- per month to be paid by defendant Nos.1 and 2 from the date of suit till delivery of vacant possession. In the said suit, an application was filed under Order VII Rule 11 of C.P.C. by respondent Nos.1 and 2 defendant Nos.1 and 2 seeking rejection of the plaint, contending that the suit was barred in view of Section 70 read with Section 125 of the Karnataka Co-Operative Societies Act, 1959 (hereinafter referred to as 'Act', for the sake of convenience). The trial Court has accepted the contentions of defendant Nos.1 and 2 and rejected the plaint. Being aggrieved, the plaintiff has preferred this appeal. 5. We have heard learned counsel for the appellant; learned counsel for respondent Nos.1 and 2 and learned counsel for respondent No.9-Bengaluru Development Authority. Respondent Nos.3 to 8 are served and unrepresented. We have perused the material on record. 6. Appellant's counsel contended that suit has been filed, essentially against respondent Nos.1 and 2 herein seeking the relief of declaration of title and possession and for damages. That the said suit was filed by the plaintiff as against defendant Nos.1 and 2 as well other defendants. That the suit is not filed touching upon any action or order made by defendant No.9- Vishwabharathi House Building Co-operative Society. It does not concern any dispute touching the constitution, management, or the business of the respondent Society. Therefore, Section 70 of the Act is not applicable to the instant case. He further contended that under Section 125 of the Act also, if any act touching upon the constitution, management or the business of the society is to be questioned in a suit, then notice has to be issued to the Society and only after expiration of two months, after notice in writing is delivered to the Registrar, the suit could be filed. That the instant suit does not touch upon the constitution, management or the business of the Society. That the defendant-Society has executed supplemental sale deed in favour of the plaintiff on 13-11-2013. That the plaintiff being a beneficiary under the said agreement and having acquired title to old site No.742, which has been now renumbered as site Nos.3329, 3330, 3238, 3239 and 3240 filed a suit against respondent Nos.1 and 2 as they and their tenants are in illegal possession of the suit schedule property of which the plaintiff is the owner. That such a plaint could not have been rejected by the trial Court by invoking Section 70 read with Section 125 of Act. He contended that impugned order of the trial Court may be set aside and the suit may be restored on the file of the trial Court, so as to try and dispose in accordance with law. 7. Per contra, learned counsel for respondent Nos.1 and 2, who are the contesting respondents who filed the application under Order VII Rule 11 of CPC before the trial Court contended that the plaintiff is an allottee from the respondent/Co-operative Society. That defendant Nos.1 and 2 are the earlier allottees. That the supplemental sale deed has been executed by the society in favour of the plaintiff pursuant to the directions issued by this Court in W.P.No.6945/2008. Therefore, the suit filed by the plaintiff is touching upon the business of the respondent/society and hence the plaint has been rightly rejected on account of there being a remedy under the provisions of the Act and the suit being barred under Section 118 read with Section 70 of the Act. Further, no notice was issued to the respondent Society under Section 125 of the Act and for that reason also the plaint has been rightly rejected by the trial Court. In support of his submission, learned counsel placed reliance on the judgment of the learned single Judge of this Court in the case of Narasegowda vs. HMT Employees House Building Co-operative Society Ltd., (1992) ILR(Kar) 3564 (Narasegowda). Learned counsel for respondent Nos.1 and 2 contended that there is no merit in the appeal and the appeal may be dismissed. 8. In support of his submission, learned counsel placed reliance on the judgment of the learned single Judge of this Court in the case of Narasegowda vs. HMT Employees House Building Co-operative Society Ltd., (1992) ILR(Kar) 3564 (Narasegowda). Learned counsel for respondent Nos.1 and 2 contended that there is no merit in the appeal and the appeal may be dismissed. 8. Learned counsel for respondent No.9/BDA submitted that the said respondent is only a formal party and that no relief has been sought against BDA in this appeal and therefore, appropriate orders may be made in the matter. 9. Having heard learned counsel for the respective parties, the following points would arise for our consideration: (i) Whether the trial Court was right in rejecting the plaint under Order VII Rule 11 of the CPC in the instant case? (ii) What order? 10. The prayers sought for by the plaintiff in the plaint extracted above are in respect of the suit schedule property, which is an immovable property, the details of which are also extracted above. In substance, the prayers sought by the plaintiff is for declaration of title and for possession and other incidental and ancillary reliefs. The same is sought essentially against defendant Nos.1 to 8 in the suit. Defendant No.9 is the house building cooperative society, which has executed the supplemental sale deed dated 13/11/2013 in favour of the vendor of the plaintiff and defendant No.10/BDA. The plaintiff is not questioning any action of defendant No.9/society, rather the plaintiff is contending that having acquired title under the supplemental deed dated 13/11/2013 executed by the house building co-operative society, is seeking a declaration essentially against defendant Nos.1 to 8 namely, declaration of title on the basis of the said supplemental deed and for possession by contending that defendant Nos.1 to 8 are in occupation and in illegal possession of the suit schedule property. 11. We have perused the plaint, a copy of which is made available by the learned counsel for the plaintiff/appellant during the course of his submission. Paragraph Nos.8 to 14 of the plaint read as under: "8. 11. We have perused the plaint, a copy of which is made available by the learned counsel for the plaintiff/appellant during the course of his submission. Paragraph Nos.8 to 14 of the plaint read as under: "8. The Plaintiff respectfully submits that he is the absolute owner of Property bearing Site Nos.3329, 3330, 3238, 3239 and 3240 (Old Number 742) carved in Survey Nos.16, 17, 18, 19 of Gerahalli Village and 101, 103/1, 103/2, 104/1, 104/2, 105 and 106 of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk, in 4th Phase of Girinagar, Bengaluru 560 085, bounded on East by Road; West by Road, North by Site No.3237 and South by: Part of Site Nos.3328 and 3241, measuring East to West 80 feet and North to South 70 feet, totally measuring 5600 sq. ft., more fully described in the Schedule hereunder. (Hereinafter referred to as Schedule Property) having acquired the same under Supplemental Deed dated 13.11.2013 executed by Vishwabharathi House Building Co-Operative Society Ltd. in favour of the Plaintiff registered as Document No.CMP-1- 06346/2013-14 stored in CD No.CMPD101, in the Office of the Sub-Registrar, Basavanagudi (Chamrajpet), Bengaluru. The Supplemental Deed dated 13.11.2013 is herewith produced as DOCUMENT NO.6. The Supplemental Deed was executed in favour of the Plaintiff by the Society on the basis of the Absolute Sale Deed dated 07.11.2013 executed by Sri Nagendra, Son of Sri. K. Chandra Setty, Residing at No.32, 13th 'B' Main, 50 Feet Road, Banashankari 1st Stage, Bengaluru 560 050, in favour of the Plaintiff registered as Document No.CMP-1-06171/2013-14 stored in CD No.CMPD101 in the Office of the Sub- Registrar, Basavanagudi (Chamrajpet), Bengaluru in respect of Property bearing Vacant Site No.742 (New Site Nos.3329, 3330, 3238, 3239 and 3240), carved in Survey Nos. 16, 17, 18, 19 of Gerahalli Village and 101, 103/1, 103/2, 104/1, 104/2, 105 and 106 of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk, in 4th Phase of Girinagar, Bengaluru 560 085, measuring East to West: 80 feet; North to South: 60 feet, totally measuring 4800 sq. ft., bounded on the East by: Site No.761, West by: Road; North by: Site No.743 and South by: 741. The Sale Deed dated 07.11.2013 is herewith produced as DOCUMENT NO.7. 9. The Plaintiff, as per his allotment letter dated 08.11.2013 issued to him by the Society has been allotted possession of 5600 sqft. ft., bounded on the East by: Site No.761, West by: Road; North by: Site No.743 and South by: 741. The Sale Deed dated 07.11.2013 is herewith produced as DOCUMENT NO.7. 9. The Plaintiff, as per his allotment letter dated 08.11.2013 issued to him by the Society has been allotted possession of 5600 sqft. Therefore in the Supplemental Deed dated 13.11.2013, the Plaintiff has been allotted an additional adjacent land measuring 800 sq. ft (measuring East to West 80 feet and North to South 10 feet) in addition to confirming 4800 sqft of land which was already conveyed to him under the Absolute Sale deed dated 07/11/2013 (presently measuring 5600 sqft). Thus, there is a difference of 800 sq. ft between the Absolute Sale Deed dated 07.11.2013 and Supplemental Deed dated 13.11.2013, which clearly finds mention in the Supplemental Deed dated 13.11.2013 and accordingly the requisite Stamp Duty has also been paid by the Plaintiff in respect of the additional extent of 800 sq.ft. of adjacent land. Copy of the Possession Certificate dated 18/11/2013 issued by the Society in respect of the Schedule Property is produced herewith as DOCUMENT NO.8. Subsequent to issuance of the Possession Certificate in favour of the Plaintiff herein, the Plaintiff has got the Khatha transferred to his name and has been paying the property tax till date and he has been in symbolic possession of the Schedule Properties. The Plaintiff produces herewith the Copy of the Katha Certificate as DOCUMENT NO.9 and tax paid receipts for the years, 2014-2015, 2015-2016, 2016-2017 and 2017- 2018 as DOCUMENT NO.10. 10. The Plaintiff further submits that his vendor Sri Nagendra is a senior member of the Vishwabharathi House Building Cooperative Society Ltd. and was allotted Site bearing No.742, carved in Survey Nos.16, 17, 18, 19 of Gerahalli Village and 101, 103/1, 103/2, 104/1, 104/2, 105 and 106 of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk, in 4th Phase of Girinagar, Bengaluru 560 085 measuring East to West: 80 feet, North to South: 60 feet, totally measuring 4800 sq. ft., bounded on the East by: Site No.761, West by: Road; North by: Site No.743 and South by: 741. vide Sale Deed dated 27.08.1993 registered as Document Nos.3864/1993-94 executed by the said Society in his favour. The Sale Deed dated 27.08.1993 is herewith produced as DOCUMENT NO.11. ft., bounded on the East by: Site No.761, West by: Road; North by: Site No.743 and South by: 741. vide Sale Deed dated 27.08.1993 registered as Document Nos.3864/1993-94 executed by the said Society in his favour. The Sale Deed dated 27.08.1993 is herewith produced as DOCUMENT NO.11. It is the Site presently bearing Nos.3329, 3330, 3238, 3239 and 3240 (which was previously identified as Site No.742 Sale Deed dated 07.11.2013 and Sale Deed dated 27.08.1993 respectively) which is the subject matter of this Suit. 11. The Plaintiff further submits that as on 27.08.1993, the Sites situated in the Vishwabharathi Housing Complex, 4th Phase, Girinagar formed in Survey Nos.16, 17, 18, 19 of Gerahalli Village and 101, 103/1, 103/2, 104/1, 104/2, 105 and 106 of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk Bangalore 560 085, were not owned by the said Society and the same were subject matter of acquisition proceedings by the Bangalore Development Authority. It is the aforesaid lands in Survey Nos.16, 17, 18, 19 of Gerahalli Village and 101, 103/1, 103/2, 104/1, 104/2, 105 and 106 of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk Bangalore 560 085, which were allotted by the Bangalore Development Authority to the Society vide Government Order dated 04.10.2007 which was subsequently confirmed by the Hon'ble High Court of Karnataka vide Order dated 16.11.2010 in W.P.No.6945/2008 and finally vide registered Sale Deed dated 18.06.2012 executed by the BDA in favour of the Society. 12. The Plaintiff further submits that as a matter of fact, the Plaintiff had purchased the Property allotted and sold to Sri. Nagendra by execution of Sale Deed dated 07.11.2013. The Plaintiff further submits that Sri Nagendra who is the senior member of the Society was allotted Site bearing No.742 by the Society vide Sale Deed dated 27/08/1993. Subsequent to the BDA executing the Sale Deed in favour of the Society and thereafter executing the Rectification Deed and issuance of the Possession Certificate in favour of the Society, the Society got the layout plan approved by the BDA by allotting new site numbers in place of the old numbers. The site bearing Old No.742, which was allotted to Sri Nagendra by the Society was renumbered as Site Nos.3329, 3330, 3238, 3239 and 3240 by the BDA as per the newly approved layout plan. The Plaintiff further submits that this predecessor in title, Sri. The site bearing Old No.742, which was allotted to Sri Nagendra by the Society was renumbered as Site Nos.3329, 3330, 3238, 3239 and 3240 by the BDA as per the newly approved layout plan. The Plaintiff further submits that this predecessor in title, Sri. Nagendra approached the Plaintiff and offered to sell the Schedule Property in favour of the Plaintiff and had also obtained permission from the Society to permit him to sell the Schedule Property to the Plaintiff herein. The Plaintiff after obtaining confirmation regarding the Seniority of Sri. Nagendra, agreed to purchase the Schedule Properties and accordingly got the Absolute Sale Deed dated 07/11/2013 registered in his name. Subsequent to registration of the Sale deed dated 07/11/2013, the Society executed the Supplemental Deed in favour of the Plaintiff, after verifying the seniority/genuinity/eligibility of the Plaintiff and Sri. Nagendra herein and also issued the Possession Certificate to the Plaintiff. It is further submitted that the Society, as per the guidelines laid down by the Hon'ble High Court of Karnataka in W.P.No.6945/2008, has issued a paper publication dated 12/02/2014 in Prajavani Newspaper, at Page 3B listing out all approved sites in Girinagar IV Phase and their corresponding rightful allottees and also calling upon all unauthorized illegal occupants to vacate and deliver vacant possession of the sites held by them to the Society in order for the same to handed over to senior/genuine/eligible members of the Society such as the Plaintiff. The said paper publication clearly indicates that the Plaintiff is the rightful allotee in respect of the Schedule Property. Copy of the said Paper Publication dated 12.02.2014 is produced herewith as DOCUMENT NO.12. 13. The Plaintiff respectfully submits that the Defendant Nos.1 and 2, claim to be the owners and title holders of the Schedule Property on the basis of the two Sale deeds executed by the Society, both dated 19/03/2008. Defendant No.1 claims to have obtained title in respect of sites bearing Nos.792/2 and 825/2 measuring East to West 80 feet and North to south 30 feet and bounded on the East by: Road, West by: Road, North by: Site No.796/3 & 825/3 and South by: Site No.796/1 & 825/1, vide Sale Deed dated 19.03.2008 executed by the Society in favour of the First Defendant, Smt. Mangala vide Document No.7183/2007-08 registered in the office of the Sub-Registrar Basavangudi, Bangalore. Likewise, Defendant No.2, claims to have obtained title in respect of sites bearing Nos.796/1 and 825/1 measuring East to West 80 feet and North to south 30 feet and bounded on the East by: Road, West by: Road, North by: Site No.796/2 & 825/2 and South by: Site No.796 & 825 vide Sale Deed dated 19/03/2008 executed by the Society in favour of the Second Defendant, Smt. L. Kushalini vide Document No.7184/2007-08 registered in the office of the Sub-Registrar Basavangudi, Bangalore. Copy of the Sale deed dated 19.03.2008 executed by the Society in favour of the Defendant No.1 is herewith produced and marked as DOCUMENT NO.13. Copy of the Sale deed dated 19.03.2008 executed by the Society in favour of the Defendant No.2 is herewith produced and marked as DOCUMENT NO.14. 14. The Plaintiff respectfully submits that as on 19.03.2008, the Society did not have title over the said sites claimed by the Defendant Nos.1 and 2 and therefore the two sale deeds dated 19.03.2008 registered as Document Nos.7183/2007-08 and 7184/2007- 08 respectively, executed by the Society in favour of Defendant Nos.1 and 2, do not confer any title of ownership. It was only subsequent to the Government Order dated 04.10.2007 which was confirmed by the Hon'ble High Court of Karnataka vide Order dated 16.11.2010 in W.P.No.6945/2008 and finally vide registered Sale Deed dated 18.06.2012 executed by the BDA in favour of the Society, that the Society received title over the said sites. Therefore, in the absence of confirmation of the sale deeds dated 19.03.2008, by the Society as per the guidelines of the Hon'ble High Court of Karnataka vide Order dated 16.11.2010 in W.P.No.6945/2008, the said sale deeds have no legal validity. The relevant portion of the order dated 16.11.2010 is herewith extracted for easy reference: "44(l) If the persons who are not eligible for allotment of sites according to seniority or not even members. If they are in possession of the sites and have put up constructions, the said sale deeds and allotment orders shall have no legal effect and if such persons are parties to these proceedings, no further steps need to be taken against them. If they are in possession of the sites and have put up constructions, the said sale deeds and allotment orders shall have no legal effect and if such persons are parties to these proceedings, no further steps need to be taken against them. If they are not parties to these proceedings who are in possession by virtue of such allotment or sale deeds, appropriate proceedings have to be initiated against them in accordance with law for cancellation of their allotment and sale deed and for recovery of possession." On a reading of the same it becomes clear that the suit filed by the plaintiff is on the basis of the supplemental sale deed dated 13/11/2013, which has been executed by defendant/society touching upon the management or business of the society. The dispute is essentially between the plaintiff and defendant Nos.1 to 8. Defendant Nos.9 and 10 have been made as formal parties as they had antecedent roles in the matter i.e., prior to the execution of supplemental sale deed dated 13/11/2013 in favour of the plaintiff. 12. Section 70 of the Act expressly states that if any dispute touches upon the constitution, management, or business of a co-operative society, then such a dispute among members, past members and persons claiming through members, and deceased members, or between such members and against any officer, agent or employee of the society, or if it is between a society or any other cooperative society or credit agency, then such a dispute shall be referred to the Registrar for decision and no civil or labour or revenue Court or Industrial Tribunal shall have jurisdiction to entertain any suit or other proceeding in respect of such a dispute. Sub-section (2) of Section 70 is a deeming provision under which certain actions are deemed to be touching upon the constitution, management or business of a co-operative society. 13. Sub-section (2) of Section 70 is a deeming provision under which certain actions are deemed to be touching upon the constitution, management or business of a co-operative society. 13. Section 125 of the Act states that no suit shall be instituted against a co-operative society or any of its officers in respect of any act touching the constitution, management or the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. Section 125 expressly states that a suit can be instituted touching upon constitution, management or business of the society, provided a two month notice is issued to the registrar regarding the impending dispute. 14. However, on a reading of the plaint and the prayers in the instant case, as has already been held, the plaint does not touch upon the constitution, management or business of the defendant/co-operative society. No action of the co-operative society is assailed in the instant suit, it is rather a dispute between the plaintiff and defendant Nos.1 to 8. In the circumstances, in our view, Section 70 or Section 125 of the Act is not applicable to the facts of the case. 15. Learned counsel for respondent Nos.1 and 2 (defendant Nos.1 and 2 in the suit) placed reliance on the judgment passed by this Court in Narasegowda. In the said case, plaintiff has challenged the cancellation of allotment said to have been made in his favour by the house building co-operative society and allotment of a site in favour of defendant No.2. Therefore, the dispute was with regard to cancellation of the said site and re-allotment to defendant by the society. In such circumstances, this Court held that the suit was barred by law and in that context, referred to Section 118 as well as Section 70 of the Act. But we have analyzed the prayers and facts giving rise to cause of action to the plaintiff to file a suit against defendant Nos.1 to 8 in the instant case from the plaint. But we have analyzed the prayers and facts giving rise to cause of action to the plaintiff to file a suit against defendant Nos.1 to 8 in the instant case from the plaint. As we have already stated, the cause of action in the instant case does not touch upon the constitution, management or business of the defendant/house building co-operative society. On the other hand, in Narasegowda's case, the action of the society therein was assailed. Therefore, the judgment in Narasegowda's case is not applicable to the case on hand. In the circumstances, we conclude that the trial Court was not right in rejecting the plaint by exercising the jurisdiction under Order VII Rule 11 of the CPC. Consequently, the impugned order dated 23/06/2018 is set aside. The appeal is allowed. The matter is remanded to the trial Court and the suit is restored on the file of the trial Court to be disposed of in accordance with law. 16. At this stage, learned counsel for the appellant submits that since the rejection of the plaint has been set aside and the matter is remanded to the trial Court for a fresh disposal, direction may be issued to the registry to refund the full amount of Court fee paid on the memorandum of appeal by the appellant under Section 64(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. 17. Office to refund the entire Court fee paid by the appellant herein to the appellant after due verification.